MISRA, J. - (1.) THE appellant Vidya Prakash Johari has filed this appeal against the order of the Motor Accident Claims Tribunal, Jaipur dated 29. 3. 2000 whereby the petitions of claim filed by the appellant claiming compensation for the several injuries sustained by him in course of the accident caused by Bus No. H. R.-10-A-427 owned by the Haryana Roadways and driven by the driver who was in the service of the Haryana Roadways, has been dismissed.
(2.) THE perusal of the impugned award indicates that the reason for dismissal of the claim petition are two fold in regard to which three issues were essentially framed pertaining to the accident which took place on 21. 10. 93. THE issues interalia were whether the accident was caused by Bus No. HR-10-A-427 on 21. 10. 93 near Guru Nanak Sansthan Bhawan, Adarsh Nagar, Jaipur at which place the bus No. HR-A-427 caused the accident in which the claimant appellant was injured and if that is correct what is the compensation that should be awarded to the claimant. THE third issue was who are the persons who were injured and what would be the adequate compensation for each of the injured persons. The Tribunal while analysing the evidence in the accident although initially had some doubt about it since one of the eye witnesses was dis-believed, it ultimately accepted the position that the accident infact occurred on 21. 10. 93 by Bus No. HR-10-A- 427 and its identity could not be doubted. The Tribunal thereafter went into the next question regarding the negligence of the driver of the scooter and the claimant appellant who was sitting on the driver's seat alongwith the driver fell down since the scooter was hit by the bus of Haryana Roadways causing several injuries to the scooter driver as also to the claimant Vidya Prakash Johari who was sitting at the back alongwith the driver. The Tribunal however recorded a finding against the scooter- driver and consequently against the claimant also stating that the accident occurred not on account of the fault of the bus driver, but it was the scooter driver himself who was negligent in driving the vehicle and it was due to the fault of the scooter driver that the accident took place on 21. 10. 93. Since the entire liability of causing the injuries has been fastened on the scooter driver, the claim of compensation by the accompanying passenger/claimant, has also been dismissed. Although the vehicle No. HR-1-A-427 which is the bus owned by the Haryana Roadways is alleged to have caused the accident, there was some initial doubt about its involvement, but a finding thereafter was recorded in favour of the claimants to the effect that the accident was caused by Bus No. HR-10-A-427. Thus, the finding of the Tribunal in regard to factum of accident caused by the aforesaid vehicle is not fit to be interfered with. The main ground of challenge against dismissal of the claim petition by the counsel for the appellant Shri Virendra Agrawal is that the respondent-Haryana Roadways never indicated in its reply regarding the fault of the scooter driver nor any evidence was led by the Haryana Roadways that it is the scooter driver who was instrumental or was at fault due to which the accident took place. The Tribunal therefore on its own could not have set-up a defence in favour of the Haryana Roadways and enter into scrutiny of the same without any evidence in this regard on record so as to exonerate the liability of the Haryana Roadways to pay the compensation to the claimants and thus, the dismissal of the claim petition on this ground is clearly against the case of the respondent-Haryana Roadways itself.
(3.) WHEN this argument is considered in the light of the discussion incorporated in the order of the Tribunal, it appears to be correct that no evidence was led by the Haryana Roadways regarding the fault of the scooter driver and the claimants in causing the accident as no cross examination has at all taken place in regard to this fact. This, it appears to be a reasonable argument that the Tribunal on its own could not have imagined a situation in favour of the Haryana Roadways without any plea to that effect on their part. The finding of the Tribunal therefore, in this regard will have to be set aside as the same has been recorded without any evidence to that effect and also because no plea in this regard was ever raised by the Haryana Roadways. Thus, once the factum of the accident was proved and the identity of the vehicle causing the accident was accepted as correct, the Tribunal was legally bound to decide the quantum of compensation regarding the injuries sustained by the claimant taking into account the plea of contributory negligence on the part of the scooter driver who was driving the vehicle. While doing so, it could have further taken into consideration as to whether any contributory negligence at all could be attributed to the scooter-driver and whether any compensation was required to be deducted from the final amount of compensation. Thus, the finding of the Tribunal which has been recorded in regard to the negligence of the driver of the scooter without any plea raised by the Haryana Roadways cannot be sustained and hence it is set aside. The quantum of compensation therefore, will have to be decided by the Tribunal and for this purpose the matter is remanded to the Motor Accident Claims Tribunal, Jaipur in Claim Case No. 427/94 (Vidya Prakash Johari vs. Haryana Roadways & another ). Thus, the Tribunal shall determine the compensation which is payable to the claimant-appellant in the light of the evidence regarding the injuries sustained by the claimant-appellant. As already stated, if the plea regarding contributory negligence of the scooter- driver is proved by the Haryana Roadways while determining the amount of compensation, the same be also considered by the Tribunal. The appeal in view of the order of remand, be treated as disposed of. .;